Showdown between governor, legislature goes to court
Posted March 4, 2015
Updated March 5, 2015
Raleigh, N.C. — A constitutional showdown between Gov. Pat McCrory and the General Assembly heads to court Thursday.
McCrory sued lawmakers last year, saying they had wrongfully taken away his ability to manage certain executive branch affairs.
The dispute erupted over a new commission that was put in place to oversee the clean up of coal ash ponds across the state. Lawmakers reserved the right to appoint some of the members of that commission, but McCrory said those appointments should be his.
However. the governor's suit goes beyond the Coal Ash Management Commission. McCrory is challenging the right of lawmakers to make appointments to boards that oversee everything from the university system to local historic sites. For example, a new Oil and Gas Commission designed to oversee drilling regulations is supposed to begin work this summer and has several of its members appointed by lawmakers.
When a governor sues the state Legislators have also contemplated taking direct management of the state's Medicaid program away from the governor and putting it in the hands of an appointed commission.
"There are dozens and dozens of commissions with legislative appointments," said Gerry Cohen, a lawyer who now works as a lobbyist but spent decades crafting laws and constitutional provisions at the General Assembly.
Should the judges in this case rule for the governor, state government would likely face a scramble to deal with the fallout.
Three-judge panel to hear case
This hearing will be different from a typical court case in two important ways.
First, because the governor is bringing a constitutional challenge, a three-judge panel of Superior Court judges will hear the matter. WRAL.com will carry the hearing live online from Campbell University's downtown Raleigh law school.
More unusually, both the governor and lawmakers have asked the judges to decide the case without hearing evidence or testimony. Rather, the judges are being asked to "rule on the pleadings," meaning both sides think the law itself and the state's constitution makes their case for them.
Both sides have been given an hour each to make their arguments, with another half hour granted for rebuttal arguments. Neither side expects the judges to rule right away. Whoever prevails, the case will likely be appealed to the state Supreme Court.
"We will continue to defend the long-established right of the state legislature to make appointments to boards and commissions that provide independent oversight of important policy matters," said Shelly Carver, a spokeswoman for Senate President Pro Tem Phil Berger. "This authority is backed by the North Carolina constitution, case law and more than 100 years of practice."
McCrory's office did not offer a comment on the case Wednesday. When he originally brought the case, McCrory, a Republican, was joined by former Govs. Jim Hunt, a Democrat, and Jim Martin, a Republican, in fighting the coal ash commission.
"I have too much respect for North Carolina's constitution to allow the growing encroachment of the legislative branch into the responsibilities the people of North Carolina have vested in the executive branch," McCrory said at the time.
Lawyers for the legislature and the Attorney General's Office have argued in their pleadings that lawmakers have been making appointment to independent boards and commissions since 1875.
Cohen pointed out that, when governors were given veto powers in the 1990s, the constitutional amendment at that time specifically said governors could not veto legislative appointments to such executive boards, such as the UNC Board of Governors.
"If it was unconstitutional for the legislature to make appointments, why would we exempt from veto by the governor things that were unconstitutional? That would make no sense at all," said Cohen, who drafted the amendment.